An average of 535 standards have been published, per day, since 1988, states attorney in workshop held at RCGI headquarters

In the end of August, the III RGCILex Workshop was held in São Paulo, with a presentation by attorney Carlos Renato Simões Mariano. He spoke about the hierarchy of the Brazilian legal system, dealing with the standards provided for in Article 59 of the Federal Constitution (FC), as well as such administrative acts such as resolutions, provisions, notices, normative instructions and ordinances, which are often used by regulatory agencies, like the National Petroleum, Natural Gas, and Biofuels Agency (ANP) and others. According to him, Brazil has an extensive and very dense complex of standards, as well as a colossal legislative production, which makes it difficult to understand the judicial system as a whole.

The event was organized by researchers connected with RCGILex, which is a tool created to gather and analyze Brazilian and São Paulo legislation regarding natural gas. Under the coordination of Professor Hirdan Katarina de Medeiros Costa, the RCGILex is a part of the portfolio of FAPESP Shell Research Centre for Gas Innovation (RCGI). According to her, the best legal repositories are usually tools maintained by large companies that charge large sums to provide access to their contents. “In Brazil where the quantity of standards is huge, this type of tool could help make access to legal information more organized and democratic.”

Mariano quantifies Brazil’s “inflation of standards”. “Since the Federal Constitution of 1988 (CF 1988), Brazil has published an average of 535 standards per day,” he stated. “That’s a lot!” During the presentation, he gave special attention to the typology of Brazilian standards, explaining, one by one, the different types of standards and their hierarchical position in the Brazilian legal system, based on a system called the Kelsen Pyramid, attributed to jurist and philosopher Hans Kelsen.

The legal expert, based on Article 59 of the Federal Constitution of 1988, explained that the Brazilian legislative process takes in the preparation of seven types of standards: Constitutional amendments; complementary laws; empowered laws; common laws; provisional measures; legislative decrees and resolutions. But there are also administrative acts, such as resolutions, acts, and normative instructions But there are also administrative acts, such as resolutions, acts, ordinances, rules, and instructions.

“The regulatory agencies, like the ANP, which focuses on the petroleum and natural gas sector; the ANEEL (National Electrical Power Agency), which regulates the electricity sector; and others, make use of these standards modalities. These acts come with legal force, as long as they comply with the nation’s legislation.” We must remember that, different from the electricity sector, which is regulated by several Ministerial orders and resolutions that often have no synergy between them, the natural gas sector is regulated by the Natural Gas Law and several standards.

Constitutional Amendments and Provisional Measures – The attorney also explained that, since 1988, Brazil has made 99 amendments to the Federal Constitution (FC). “The object of the first spoke of the remuneration of State and Municipal legislators and the last one deals with issues related to an international protocol on accessibility for people with disabilities,” he said, stressing the inversion of priorities in this specific case.

Mariano then opened an enormous parenthetical section to speak about Provisional Measures (PM). “Brazil’s Executive Branch exaggerates with their use. Publishing PMs is not a typical function of the Executive Branch and, furthermore, there are prerequisites to the use of this modality, such as urgency and relevancy. A PM has a maximum validity of 60 days after it is published. What that means is that if it was not passed into Law by the Legislative Branch within that 60-day period, it expires. The use of PMs was a political option set forth by the original constituent authority. And it is provided for in the FC 1988, in Articles 59 and 62.”

The presenter explained that if it is not made into Law, the Congress must normalize the effects caused during the period in which the PM was in effect. “In this case, it is necessary to publish a legislative decree to regulate the legal relations that were established during the time that the PM was in effect, that is, during those 60 days. Because, during those 60 days, in some cases, rights were acquired, rights were exercised. Or on the other hand: rights were lost. If the PM does not become Law and is no longer in effect due to its expiration after 60 days, it is necessary to ‘correct’ all that happened while it was in effect,” explains Professor Hirdan Katarina de Medeiros Costa, who is the RCGILex coordinator and the organizer of the workshop.

The RCGILex Workshops are held from the month of May and on into November. One of the purposes is to make the group of RCGI collaborators familiar with the tool, which has several levels of access and can receive collaborations in the form of texts, videos, and images.